WZANO v Minister for Immigration & Citizenship

THE TRIBUNAL DECISION 9 On 25 August 2008, the Tribunal made its decision affirming the delegate's decision not to grant the appellant a protection (Class XA) visa. 10 The Tribunal accepted that his involvement in the UNP included activities such as canvassing, distributing posters and assisting with the organisation of meetings and election campaign but it considered the nature and extent of the applicant's role was at a low level. Furthermore, the Tribunal regarded his limited political knowledge and understanding against his claim to have been an active member of the UNP and a Youth Group Leader. 11 Although the Tribunal accepted that the appellant may have been assaulted in 2003 and abducted in 2005 by allegedly uniformed men and released after paying a ransom, it considered these incidents did not constitute harm amounting to persecution on account of the appellant's political identity but rather as acts, criminal in nature, directed at him as an individual and not politically motivated. 12 The Tribunal accepted that if the appellant returned to Sri Lanka he may continue to support the UNP, and may continue to provide low level support for the party during future election campaigns. The Tribunal did not accept, however, that there was any real chance that such general involvement with the UNP will result in the appellant being adversely targeted by opposing political parties or groups and that he will experience serious harm. 13 However, and importantly, for the purposes of this appeal, the Tribunal in arriving at these conclusions found that the appellant was not a credible witness and had not given a truthful account of his circumstances in Sri Lanka relating to his political activities, in particular the nature and level of his involvement with the UNP, the consequences of those activities, and the reasons he left Sri Lanka. Its reasons for so finding included the following: · there were discrepancies between the evidence the appellant gave at the Departmental interview and to the Tribunal regarding when he became actively involved in working for the UNP; · the appellant failed to raise his earlier active involvement with the UNP during 2000/2001 at the Departmental interview; · the appellant could not recall when the alleged beatings during the 2004 election campaign took place; · the appellant had a lack of awareness of the formal membership provisions of the UNP, and when questioned about the formal membership rules of the UNP his answers were evasive and illogical; · the appellant's responses at the Departmental interview were too vague for someone who was actively involved in the youth wing of the UNP. Further his confused account was a further indication that he was not involved with the UNP at the level claimed; · the appellant gave internally inconsistent evidence about the nature and magnitude of the conferences he claimed to have organised in the Colombo urban area, as well as the circumstances of his abductions; · the appellant did not mention the problems he faced in Sri Lanka at the time he was presented with an opportunity to make comments in response to the Department's intention to cancel his student visa; · the significant delay of 2 years in the appellant lodging a protection visa application; and · the fact that the appellant had returned to Sri Lanka in 2007 staying there for about one month. 14 Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in the foreseeable future for any of the Convention reasons and consequently concluded that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal, therefore, affirmed the delegate's decision on 27 February 2009 not to grant the appellant a protection visa.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT 15 On 3 April 2009, the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. The appellant was represented at the hearing on 23 July 2009. At that hearing, the appellant abandoned grounds 2 and 3, and amended, with leave of the Court, ground 1 of the application to allege that the Tribunal committed jurisdiction error by: (a) Failing to notify and invite the applicant pursuant to s 424A of the Migration Act to comment on information which would be the reason or part of the reason, for affirming the decision that was under review; and (b) The mistaken reliance on information provided by the applicant to the Department orally in 2006 for the purpose of obtaining a student visa contrary to s 424A(3)(ba) of the Migration Act. 16 In relation to ground 1(a) the appellant submitted that: (a) when the Tribunal sent the s 424A Notice Letter it failed to invite the applicant to comment on information which would be the reason, or a part of the reason, for affirming the decision under review, being information from a named source that there was "negligible" political violence in Sri Lanka at the times the applicant submits that he suffered party political violence from late 2003, leading up to the 2004 election campaign; (b) the information contained in the Dayan Jayatilleka seminar relied on in the Tribunal Decision engaged s 424A because it tended to suggest that: (i) the applicant could not possibly have had a convention fear of "serious harm"; or (ii) there were so few instances of party political violence against the Sinhalese in Sri Lanka following the 2004 elections that one may infer that the odds of the applicant experiencing such were "negligible"; (c) he was not notified in the s 424A Notice Letter of the Seminar Information and therefore did not adduce any further evidence to counter it; (d) the Seminar Information is dispositive, and goes to the heart of the Protection Visa claim, and as such is of the type of information identified in MZXBQ v Minister for Immigration and Citizenship & Anor; (e) the Seminar Information is outside of the statutory exceptions to s 424A provided in ss 424A(1) and (3)(a) of the Migration Act, primarily due to the fact that this evidence was from an individual, whom the applicant alleges is partisan, unobjective and incorrect, as well as being in conflict with other recognised country information sources; (f) the Seminar Information was not before the delegate; and (g) the Seminar Information was not referenced during the Tribunal Hearing, and nor were questions asked of it, it being first referred to in the Tribunal Decision, and as such is distinguishable from the facts of SZMTP v Minister for Immigration and Citizenship. 17 In relation to ground 1(b) the appellant submitted that there was no s 424A notice letter regarding the mistaken reliance by the Tribunal and delegate on information provided by the appellant to the Department orally in 2006 for the purpose of obtaining a student visa was contrary to s 424A(3)(ba) of the Act. 18 The Federal Magistrate rejected both submissions. 19 In dealing with ground 1(b) the Federal Magistrate found that this failed at the outset as it was based on a false factual premise. Rather, as his Honour observed, what the Tribunal took into account was evidence given by the appellant at the Departmental interview in relation to his protection visa application on 11 August 2008 and his direct evidence to the Tribunal. His Honour went on to give other consideration to this ground. However, it is unnecessary for present purposes to consider those matters. 20 The Federal Magistrate also rejected ground 1(a). In so concluding the Federal Magistrate concluded, correctly in my view, that the Seminar Information was not dispositive of the appellant's claim and that, in any event, it fell within the exclusion in s 424A(3)(a) of the Act which provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. His Honour found that the Seminar Information was information about the occurrence and nature of violence generally in Sri Lanka in both a political and criminal context, and how that violence may affect the lives of a particular class of persons of which the appellant claims membership, namely ethnic Sinhalese in Sri Lanka. 21 The Federal Magistrate found no jurisdictional error and dismissed the application.

THE PRESENT APPEAL 22 The notice of appeal contains grounds to the effect that: (1) The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by failing to accept the fact that the appellant is suspected of having LTTE dealings and later was ordered to leave the country. (2) The Tribunal and Federal Magistrates Court failed to accept the fear of death which the appellant had in relation to LTTE involvement and failed to grant him the opportunity to explain the consequences if he continued to stay in Sri Lanka. (3) The Federal Magistrates Court and the Tribunal constructively ignored relevant material as to the appellant's claimed involvement in LTTE conspiracy and relied on irrelevant material to reject his claims. (4) The Federal Magistrates Court and the Tribunal identified wrong issues and the Tribunal knowingly asked wrong questions in order to confuse the appellant as to relevant dates and time frames stated in his claims. 23 The grounds now raised in the notice of appeal were not before the Magistrates Court. Accordingly, leave is required: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [23]-[26]. 24 Leave to argue a ground of appeal not raised before the Court below should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [46]. Their Honours observed at [48]: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 25 In Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 the Full Court said at [24]: However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge. 26 The grounds are not particularised in the notice of appeal but the appellant provided written and additional oral submissions on the morning of the hearing, which to an extent provided particulars although these cannot be conveniently allocated to particular grounds. I will deal with them globally. The appellant submits that the Tribunal ought not to have relied on evidence given at the Seminar presented by Mr Dayan Jayatilleka who, he said, was a supporter of the Sri Lankan government. A similar complaint was made in the Court below. His Honour dealt with it in this way at [34]-[35]: [34] Because the Seminar Information was not dispositive of the review application it is strictly unnecessary to address the applicant's assertions that the Seminar Information is: a) "partisan, unobjective and incorrect"; and b) "in conflict with other recognised country information sources". [35] The assertions can however be disposed of briefly: a) the former assertions are bare assertions, made in the applicant's written submissions, unsupported by any evidence, in circumstances where this Court's Orders of 24 April 2009 allowed for the applicant to file affidavits to be relied upon at hearing; b) furthermore, there is nothing on the face of the record which is capable of sustaining the former assertions; and c) the latter assertions might or might not be true, but it is for the Tribunal to consider and weigh conflicting country information, as it did in this case. There is nothing that the Tribunal did in relation to its assessment of conflicting country information which warrants interference by this Court on an application for judicial review. 27 This complaint was disposed of correctly by the Federal Magistrate for the reasons he gave. No jurisdictional error is established. 28 The appellant submits that the Tribunal completely ignored and misunderstood the political situation and the basis of the ethnic conflicts in Sri Lanka and rejected the appellant's claims on wrong issues amounting to jurisdictional error. He said that the present political turmoil and the disappearance, murders and sufferance of opposition UNP party members, journalists and NGOs after the presidential election and the defeat of the LTTE in Sri Lanka coupled with the genocide committed by both the Sri Lankan President Rajapakse and his brother Gotabhaya proves beyond doubt that the Tribunal failed to take into consideration relevant issues when considering his case. These last matters alleged appear to post date the decision of the Tribunal. 29 In any event the Tribunal considered in great detail independent country information including that concerning extra judicial killings and "disappearances" by members of government security forces. 30 He also submits that the Tribunal failed to take into account that the appellant hails from the same village where President Rajapakse and his brothers were born; and that the appellant's father, a strong UNP supporter, was at loggerheads with the Rajapakse brothers from the beginning before Rajapakse became the President of Sri Lanka and Gotabhaya became the Defence Secretary. He said that the fact that the President and his brothers were determined to wipe out any opposition party from the roots is a material fact which was completely ignored by the Minister and which was overlooked by the Tribunal as well. He submits that by ignoring relevant materials jurisdictional error is made out. 31 Ground 1 and the first part of ground 2 amount to impermissible merits review of factual findings. The Tribunal considered in detail the appellant's claims in these respects and rejected them upon grounds which were well open to it. 32 As to the second part of ground 2 there is no evidence that the appellant was not afforded a reasonable opportunity to explain the consequences if he continued to stay in Sri Lanka. He attended the Tribunal hearing on 11 November 2008 where he gave oral evidence. Documentary evidence had been provided by him to the Department and was before the Tribunal. This included newspaper reports and was taken into account by the Tribunal [113]. Moreover the s 424A letter sent to him by the Tribunal was nine pages in length and went into great detail as to the Tribunal's concerns as to his claims and evidence. The appellant instructed his solicitor concerning these matters who provided a detailed response in a letter to the Tribunal dated 17 December 2008. That response covered the very subject matter about which the appellant complains in this part of ground 2. 33 As to ground 3 the relevant findings of fact were open on the evidence before the Tribunal which engaged in a fulsome analysis of the evidence as a whole. 34 The following findings by the Tribunal demonstrate that the matters relevantly complained of by the appellant were considered. 35 At [83] and [113] of its reasons the Tribunal stated: 83. The Tribunal accepts that the applicant was born in and grew up in the town of Weeraketiya, Sri Lanka, that this is also the home town of the current president Mahinda Rajapaksa (or Rajapakse) and his brother Gotabhaya Rajapaksa, and that the town and the district of Hambantota have been a stronghold of the President's political party, the Sri Lanka Freedom Party (SLFP) for a number of decades. … 113. The Tribunal has considered the applicant's claim that the President and his brother are implicated in extra-judicial killings, and would thus take steps to eliminate persons who opposed them, such as the applicant. The Tribunal has taken into account the independent evidence, including that provided by the applicant, reporting that government security forces have been implicated in abductions and extra-judicial killings, and that while the great majority of victims are ethnic Tamils, though Sinhalese and Muslims are also targeted. While there are reports that the President and other ruling political figures such as his brother do not tolerate criticism well, and the independent evidence (including that provided by the applicant) confirms that the political situation in Sri Lanka is highly volatile, the Tribunal finds the evidence does not support a conclusion that the President or his brother personally instigate action to eliminate political rivals in a violent manner. In addition, the Tribunal has not accepted that the applicant has any profile of political activity that would lead to him being adversely targeted by opponents of the UNP generally. In reaching this conclusion the Tribunal has also taken into account the independent evidence that while there are instances of political violence during election campaigns, these have decreased in recent years, and there is very little evidence of ongoing political violence between major political parties in the period between elections. The Tribunal therefore rejects the claim that the applicant would be adversely targeted at the behest of President Mahinda Rajapakse or his brother Gotabhaya. 36 In my opinion there is no basis to ground 4. The allegations, in effect, of wilful misconduct of the proceedings by the Tribunal are entirely without merit and should not have been made. 37 It is clear from the Tribunal's reasons for decision that it affirmed the delegate's decision because it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention. It did not accept that the appellant had been involved in any political activity that would lead to him being adversely targeted by opponents of the UNP generally. The factual findings made by the Tribunal in these respects were to a significant extent the consequence of its general adverse finding as to the appellant's credibility. This finding is not open to judicial review: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. It also found, by reference to independent country information, that while there were instances of political violence during election campaigns, these have decreased in recent years and there was very little evidence of ongoing political violence between major political parties in the period between elections. 38 The new grounds sought to be argued by the appellant have no reasonable prospect of success in establishing jurisdictional error on the part of the Court below. I would refuse leave to raise the proposed grounds of appeal. The appeal ought be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.